42d  Congress,  ) 
2d  Session.  ) 


SENATE. 


<  Report 
i  No.  21. 


IN  THE  SENATE  OF  THE  UNITED  STATICS. 


JANUARY  2o,  1S72.— Ordered  to  be  printed. 


Mr.  Carpenter,  from  the  Committee  on  the  Judiciary,  submitted  the 


The  Committee  on  the  Judiciary,  to  whom  was  referred  the  memorial  of  Eliza- 
beth Cady  Stanton,  Isabella  Beecher  Hooker,  Elizabeth  S.  Bladen,  Olym- 
pia  Brown,  Susan  B.  Anthony,  and  Josephine  J.  Griffing,  citizens  of  the 
United  States,  praying  for  the  enactment  of  a  law,  during  the  present 
session  of  Congress,  to  assist  and  protect  them  in  the  exercise  of  their 
right,  and  the  right  of  all  women,  to  participate  in  the.  elective  franchise, 
which  the  memorialists  claim  they  are  entitled  founder  the  Constitution 
of  the  United  States,  together  with  various  other  petitions  and  memorials 
to  the  same  effect,  and  various  protests  in  opposition  thereto,  respectfully 
submit  the  following  report : 

By  the  Constitution  of  the  United  States,  prior  to  the  fourteenth  and 
fifteenth  amendments,  the  power  to  regulate  suffrage,  even  in  the  elec- 
tion of  President  and  Vice-President,  Senators  and  Representatives  in 
Congress,  was  possessed  by  tbe  States  composing  the  Union,  so 
that  Congress  could  make  no  affirmative  provision  concerning  the  same; 
nor  could  Congress  alter  or  amend  regulations  made  upon  this  subject 
by  the  respective  States.    Article  I,  section  2,  provides  as  follows: 

The  House  of  Representatives  shall  he  composed  of  members  chosen  every  second 
year  by  the  people  of  tbe  several  States;  and  the  electors  in  each  State  shall  have  the 
qualifications  requisite  for  electors  of  the  most  numerous  branch  of  the  State  legisla- 
ture. 

Section  3  of  the  same  article  provides  : 

The  Senate  of  the  United  States  shall  be  composed  of  two  Senators  from  each  State 
chosen  by  tbe  legislature  thereof  for  six  years ;  and  each  Senator  shall  have  one  vote. 

Article  III,  section  1,  provides: 

Each  State  shall  appoint,  in  such  manner  as  the  legislature  thereof  may  direct,  a 
number  of  electors  equal  to  the  whole  number  of  Senators  and  Representatives  to  which 
the  State  may  be  entitled  in  the  Congress. 

From  these  provisions  of  the  Constitution  it  is  apparent  that  the 
States  possessed  the  sole  power  of  determining  the  qualifications  of  elec- 
tors therein.  And,  so  far  as  these  provisions  are  concerned,  it  is  mani- 
fest that  each  State  had  the  power  to  make  such  discrimination  as  it 
pleased  between  its  own  citizens  in  regard  to  their  participation  in  the 
elective  franchise.  Each  State  might  admit  all  citizens,  male  and  fe- 
male, over  a  prescribed  age,  or  only  some  classes  of  them,  or  might 
require  a  property  qualification,  which  would,  in  effect,  exclude  all  citi- 
zens not  possessing  the  required  amount  of  property.   Each  State  might 


COLUMBIA  LIBRARIES  OFFSITE 

AVERV  CINE  ARTS  RESTRICTED 


following 


REPORT: 


2 


KIGIir  OK   WOMKN  TO  VOTE. 


discriminate  in  this  particular  between  its  citizens  on  account  of  nice, 
color,  servitude,  or  upon  any  other  ground.  And  under  this  Constitu- 
tion the  several  States  established  various  and  incongruous  regulations 
upon  this  subject  .  In  Massachusetts  no  distinction  on  account  of  color 
was  recognized,  while  in  other  States  all  persons  having  even  admixture 
of  African  blood,  however  slight,  were  excluded;  and  some  States  re- 
quired a  property  qualification,  while  others  did  not. 

There  is,  however,  another  provision  of  the  Constitution  which  merits 
consideration  in  this  connection.    Article  IV,  section  4,  provides: 

The  United  States  shall  guarantee  to  every  State  in  this  Union  a  republican  form  of 
government. 

Under  this  provision  it  is  insisted,  with  some  plausibility,  that  a 
State  government  which  denies  the  elective  franchise  to  a  majority  of 
the  citizens  of  such  State  is  not  "a  republican  form  of  government." 
But  your  committee  are  not  satisfied  that  this  proposition  can  be  main- 
tained. In  construing  the  Constitution  we  are  compelled  to  give,  it  such 
interpretation  as  will  secure  the  result  which  was  intended  to  be  accom- 
plished by  those  who  framed  it  and  the  people  who  adopted  it.  The 
Constitution,  like  a  contract  between  private  parties',  must  be  read  in  tho 
light  of  the  circumstances  which  .surrounded  those  who  made  it.  Tho 
history  of  the  colonies,  the  history  of  the  Confederation,  and  the  circum- 
stances under  which  the  Constitution  itself  was  framed  and  adopted,  must 
all  be  taken  into  account;  and  then  we  must  ascertain  by  reading  the 
whole  instrument  together  the  sense  in  which  particular  provisions 
and  phrases  were  employed.  If  any  State  government  which  to-day 
excludes  from  suffrage  a  majority  of  its  citizens  is  not  in  form  a  repub- 
lican government,  then  a  State  government  which  did  the  same  thing 
at  the  time  the  Constitution  was  adopted  was  not  in  form  a  republican 
government.  The  exclusion  of  all  female  citizens  from  the  suffrage 
cannot  impair  the  republican  form  of  an  existing  State  government, 
unless  the  same  thing  worked  the  same  result  upon  the  State  govern- 
ments in  existence;  when  the  Constitution  of  the  United  States  was 
ail  op  ted. 

It  was  assumed  on  all  hands  that  the  governments  of  the  thirteen 
States  which  framed  and  adopted  the  Constitution  were  in  form  repub- 
lican; and  this  provision  was  intended  to  keep  them  so,  and  make.it 
impossible  for  any  State  to  change  its  government  into  a  monarchy. 
The  construction  of  this  provision  now  contended  for  would  have 
made  it  the  duty  of  the  Government  of  the  Union,  during  the  Brsl  year 
of  its  existence,  to  enter  upon  the  reconstruction  or  remodeling  tho 
governments  of  the  States  by  which  the  Union  itself  had  been  spoken 
into  existence.  In  view  of  the  history  of  those  times,  it  cannot  lie  main- 
tained that  the  States  or  the  people  intended  to  confer  such  a  power 
upon  the  Government  of  the  Union;  and  no  one  can  doubt  that  such  an 
attempt  on  the  part  of  the  Union,  in  regard  to  the  thirteen  States,  would 
have  been  condemned  by  the  unanimous  voice, and  resisted  by  the  united 
force  of  the  people.  If  such  a  power  did  not  then  exist  under  the  Con- 
stitution of  the  United  States,  it  does  not  now  exist  under  this  provision 
of  the  Constitution,  which  has  not  been  amended.  A  construction  which 
should  give  the  phrase  "a  republican  form  of  government"  a  meaning 
differing  from  the  sense  in  which  it  was  understood  and  employed  by 
the  people  when  they  adopted  the  Constitution,  would  be  as  unconstitu- 
tional as  a  departure  from  the  plain  and  express  language  of  t lie  Consti- 
tution in  any  other  particular.  Tins  is  the  rule  of  interpretation  adopted 
by  all  commentators  on  the  Constitution,  and  in  all. judicial  expositions 
of  that  instrument ;  and  your  committee  are  satisfied  of  t  he  entire  sound- 


RIGHT  OF  WOMEN  TO  VOTE. 


3 


ness  of  this  principle.  A  change  in  the  popular  use  of  any  word  em- 
ployed in  the  Constitution  cannot  retroact  upon  the  Constitution,  either 
tj  enlarge  or  limit  its  provisions. 

There  is  another  provision  of  the  Constitution  which  is  generally  re-  ' 
ferred  to  in  this  connection,  but  which,  in  the  opinion  of  your  committee, 
has  no  application  to  the  subject.    Article  IV,  section  2,  provides : 

The  citizens  of  each  State  shall  be  entitled  to  all  privileges  ami  immunities  of  citi- 
zens iu  the  several  States. 

It  has  been  much  discussed  whether  the  right  to  vote  and  hold  otlice 
in  a  State  was  within  the  privileges  and  immunities  protected  by  the 
provision  above  quoted.  But  it  is  unnecessary  to  consider  that  question 
here,  because,  even  if  the  right  to  vote  and  hold  office  be  considered  as 
embraced  within  this  provision,  still  it  was  in  the  power  of  the  State  to 
which  a  citizen  might  remove  to  determine  what  class  of  citizens  should 
or  should  not  vote  or  hold  office  in  such  State;  and  the  citizen  remov- 
ing to  such  State  was  only  entitled  to  the  privileges  and  immunities 
possessed  by  the  class  of  citizens  to  which  such  removing  citizen  be- 
longed under  the  Constitution  and  laws  of  the  State  to  which  he  had 
removed. 

We  come  now  to  consider  the  fourteenth  and  fifteenth  amendments  to 
the  Constitution,  under  which,  also,  the  right  of  female  suffrage  is 
claimed.  The  fourteenth  amendment,  so  far  as  applicable  to  this  sub- 
ject, is  as  follows : 

All  persons  born  and  naturalized  in  the  United  States,  &c,  are  citizens  of  the  United 
States,  and  of  the  State  wherein  they  reside.  No  State  shall  make  or  enforce  any  la\T 
which  shall  abridge  the  privileges  or  humanities  of  citizens  of  the  United  States,  nor 
Khali  any  State  deprive  any  person  of  life,  liberty,  or  property,  without  due  process  of 
law,  nor  deny  to  any  person  within  its  jurisdiction  the  equal  protection  of  the  laws. 

The  second  section  of  this  amendment  provides  that — 
Representatives  shall  be^  apportioned  among  the  several  States  according  to  their 
respective  numbers,  counting  tbe  whole  number  of  persons  in  each  State,  excluding 
Indians  not  taxed.  Bat  when  the  rii/ht  to  vote  at  any  election,  &c,  is  denied  to  any  of 
the  male  inhabitants  being  twenty-one  years  of'  age,  &:•.,  the  bads  of  representation 
therein  shall  be  reduced  in  the  proportion  which  the  number  of  such  male  citizens  shall 
bear  to  the  whole  number  of  male  citizens  twenty-one  years  of  age  iu  such  State. 

It  is  evidt  nt  from  the  second  section  of  this  amendment  above  quoted 
that  the  States  are  considered  to  possess  the  power  of  excluding  a  por- 
tion of  their  male  citizens  from  the  right  to  vote,  upon  grounds  or  rea- 
sons to  be  determined  by  themselves ;  because  this  section  determines 
that,  in  case  the  State  shall  exercise  this  right  so  as  to  exclude  citizens 
of  the  United  States,  except  for  commission  of  crime,  the  basis  of  repre- 
sentation for  snch  State  shall  be  correspondingly  reduced. 

It  was  argued  before  your  committee  by  the  memorialists — who,  by  a 
departure  from  the  usual  practice  of  the  committee,  were  admitted  to  a 
public  discussion  of  the  principles  involved  in  the  memorial — that  the 
right  of  every  citizen,  male  or  female,  to  vote  was  secured  by  that 
clause  of  the  first  section  of  the  fourteenth  amendment  which  provides: 
"No  State  shall  make  or  enforce  any  law  which  shall  abridge  the  priv- 
ileges or  immunities  of  citizens  of  the  United  States;''  and  that  the 
second  section  was  designed  to  fix  a  penalty  upon  the  State  for  a  viola- 
tion of  the  former  provision. 

But  such  a  construction  is  at  war  with  all  the  theories  of  constitutional 
government.  An  unconstitutional  act  is  void.  In  other  words,  an  un- 
constitutional act  is  no  act.  The  legislature  of  a  State  may  attempt  to 
pass  a  law  impairing  the  obligation  of  contracts;  but,  as  the  legislature 
cannot  pass  such  an  act,  the  attempt  is  void,  and  the  obligation  of  the 
contract  is  not  impaired.    It  would,  therefore,  be  absurd  to  punish  a 


4 


lilGHT  or  WOMEN  TO  VOTE. 


State  for  the  vain,  inclfectual  attempt  to  impair  the  obligation  of  a  eon 
tract,  a  thing  it  could  not  do,  and  therefore  had  not  done.  So,  if  by 
the  first  section  of  the  fourteenth  amendment  no  State  could  make  or  ea- 
1  force  any  law  to  deny  the  right  of  suffrage  -to  any  portion  of  its  male 
citizens  over  twenty-one  years  of  age  not  guilty  of  crime,  then  an  at- 
tempt to  do  so  would  be  merely  void,  wholly  inoperative,  and  it  would 
be  absurd  to  punish  such  State  for  doing  what  it  could  not  do.  and, 
therefore,  had  not  done. 

The  remedy  under  the  Constitution  against  any  attempted,  but  un- 
constitutional legislation  of  a  State  is  by  application  to  the  judicial 
courts  of  the  Union,  which  have  jurisdiction  in  all  causes  arising  under 
the  Constitution  and  laws  of  the  United  States,  and  a  supervisory  con- 
trol by  writ  of  error  over  State  courts  in  regard  to  causes  in  which 
either  party  asserts  a  right  or  privilege,  under  the  Constitution  or  laws 
of  the  Union  which  is  denied  or  overruled  b.\  the  State  court. 

The  positions  maintained,  first,  that  no  Stale  can  deny  to  a  citizen 
the  right  to  vote  ;  and,  second,  that  in  case  the  State;  shall  do  what  it 
cannot  do,  certain  consequences  shall  follow,  would  degrade  the  four- 
teenth amendment  to  the  level  of  compounding,  or  granting  indulgence 
for,  the  commission  of  unconstitutional  acts.  It  would  make  the  amend- 
ment say,  first,  no  State  shall  do  a  certain  thing  ;  but,  second,  if  a  State 
shall  do  what  it  cannot  do,  it  shall  forfeit  certain  rights.  It  is  hardly 
to  be  supposed  that  the  fourteenth  amendment,  intended  to  say  that  a 
State  was  forbidden  by  the  Constitution  to  do  a  certain  thing,  but  might 
do  so  by  submitting  to  a  reduction  of  its  basis  of  representation  in  Con- 
gress. 

But  there  is  another  reason,  equally  conclusive,  against  the  construc- 
tion contended  for.  By  the  fourteenth  amendment  Congress  is  empow- 
ered to  enforce  all  the  provisions  of  that  amendment,  by  appropriate 
legislation.  Therefore,  if  a  State  should  attempt  to  exclude  from  the 
right  of  suffrage  any  persons  entitled  under  the  fourteenth  amendment 
to  participate  therein,  it  would  be  the  undoubted  duty  of  Congress  to 
defeat  such  attempt  by  appropriate  legislation.  So  that  to  regard  the 
second  section  of  this  amendment  as  imposing  upon  the  State  a  penalty 
for  denying  this  right,  includes  tin;  absurdity  of  imposing  such  penalty 
for  an  attempt  of  the  State  to  do  what  it  is  the  duty  of  Congress  to 
prevent. 

Again,  the  right  of  female  suffrage  is  infcrentially  denied  by  the  second 
section  of  the  fourteenth  amendment,  which  provides  that  in  case  a  State, 
in  the  exercise  of  a  right  conceded  to  exist,  shall  exclude  a  portion  of  the 
male  inhabitants  specified, "  the  basis  of  representation  therein  shall  be  re- 
duced in  the  proportion  which  the  number  of  such  (excluded)  male  citizens 
shall  bear  to  the  whole  number  of  male  citizens  twenty-one  years  of  age 
in  such  State.'"  The  basis  is  not  to  be  reduced  in  the  proportion  which 
the  number  of  the  excluded  male  citizens  shall  bear  to  the  whole  popu- 
lation of  the  State,  male  or  female,  but  only  in  the  proportion  which 
they  bear  to  the  number  of  male  citizens  twenty-one  years  of  age  in  such 
State.  It  is  evident,  from  this  provision,  that  females  are  not  regarded 
as  belonging  to  the  voting  population  of  a  State. 

The  fifteenth  amendment  is  equally  decisive.    It  provides: 

The  right  of  citizens  of  the  United  States  to  vote  shall  not  l>e  abridged  or  denied  fay 
the  United  Stales  or  by  any  State  on  aeeount  of  race,  color,  or  previous  eondition  of 

servitude. 

This  amendment  would  have  been  wholly  unnecessary  if  the  four- 
teenth amendment  had  secured  to  all  citizens  the  right  to  vote.  It 
must  be  regarded  as  recognizing  the  right  of  every  State,  under  the 


RIGHT  OF  WOMEN  TO  VOTE. 


5 


Constitution  as  it  previously  stood,  to  deny  or  abridge  the  right  of  a 
citizen  to  vote  on  any  account,  in  the  pleasure  of  such  State;  and  by  the 
fifteenth  amendment  the  right  of  States  in  this  respect  is  only  so  far 
restricted  that  no  State  can  base  such  exclusion  upon  "race,  color,  or 
previous  condition  of  servitude.''  With  this  single  exception— race, 
color,  and  previous  condition  of  servitude — the  power  of  a  State  to  make 
such  exclusion  is  left  untouched,  and,  indeed,  is  actually  recognized  by 
the  fifteenth  amendment  as  existing. 

Your  committee  have  confined  themselves  to  the  precise  question  in- 
volved in  the  memorial,  namely,  the  present  constitutional  right  of 
female  citizens  to  vote,  as  to  which  your  committee  are  unanimous, 
and  have  not  considered  the  broader  question,  whether  the  constitution 
ought  to  be  so  amended  as  to  permit  female  suffrage,  a  report  upon 
which  might  develop  a  difference  of  opinion  among  the  members  of  your 
committee. 


